Opinion
7 Div. 678.
February 18, 1930.
Appeal from Probate Court, Etowah County; E. L. Hurst, Judge.
Petition of Alfred C. Dean for habeas corpus. From an order or judgment sustaining a demurrer to the petition, petitioner appeals. Reversed and remanded.
The amended petition is as follows:
"Your petitioner, Alfred C. Dean, respectfully represents unto your Honor as follows:
"That he is imprisoned or restrained of his liberty in the County jail of Etowah County where he was placed by consent and procurement of Joe Gramling, having been first imprisoned by S. L. O'Bannon, Chief of Police, in the City jail of Gadsden, Alabama, and who now has the custody of Alfred C. Dean on the charge of, to-wit: an indictment of non-support of minor children preferred by a grand jury of Ohio, City of Akron of said State, which said indictment was preferred against petitioner, Alfred C. Dean, on the 12th day of October, 1928; that the Governor of said State of Ohio did demand of the Governor of Alabama a requisition for petitioner and did appoint or name Jacob Bollinger, duly authorized agent of Ohio, to execute the Governor's warrant, and that the Governor granted the requisition and nominated said Jacob Bollinger as agent to execute the warrant; that the said Jacob Bollinger, agent as aforesaid, has notified Alfred C. Dean and his attorney, James D. Giles, of his purpose to return to Ohio, and upon demand of Alfred C. Dean and his attorney for a writ of habeas corpus is granted by E. L. Hurst, Judge of Probate Court of this County; that the Alfred C. Dean is illegally restrained of his liberty; that a copy of the warrant and of the extradition papers including the appointment of Bollinger is hereto attached as an exhibit to this petition. And petitioner avers and charges:
"(1) That the jurisdiction of the Court upon which the Governor of Alabama and the Governor of Ohio have exceeded their jurisdiction in granting or requesting the requisition either as to matter, place, sum or person.
"(2) Where though the original imprisonment was lawful, the petitioner has become entitled to his discharge by reason of some subsequent act, omission or event.
"(3) That the process is void in consequence of some defect in matter or subsequence required by law.
"(4) That process, though in proper form, was issued in a case, or under circumstances, not allowed by law.
"(5) Where the process is not authorized by any judgment, order or decree, or by any provision of the law.
"(6) Where the person who has the custody of him, under any order or process, is not the person authorized by law to detain him.
"And the petitioner is illegally restrained of his liberty.
"The premises considered your petitioner prays that a writ of habeas corpus be issued, directed to S. L. O'Bannon, Chief of Police of Gadsden, commanding him to bring the body of petitioner before your Honor at Three O'Clock P. M. on the 11th day of May, 1929, together with the cause of petitioner's detention, then and there to do and receive what should be done concerning him."
The solicitor for the state demurred to the petition upon the following grounds:
"1. That it is not a ground for discharge; that it seeks to inquire into the jurisdiction of the court issuing the warrant.
"2. That it is frivolous.
"3. That it seeks to have a foreign court jurisdiction inquired into by the Probate Court of Etowah County.
"4. There is no power to go behind the indictment returned by an Ohio grand jury.
"5. There is no power to go behind the warrant of the Governor of Alabama."
Jas. D. Giles and W. J. Boykin, both of Gadsden, for appellant.
When a prima facie case of legal restraint is made out, the person sought to be extradited may show either that the process is void or that he is not a fugitive from justice. Compton v. State, 152 Ala. 68, 44 So. 685; Singleton v. State, 144 Ala. 104, 42 So. 23; Barriere v. State, 142 Ala. 72, 39 So. 55; Barton v. State, 18 Ala. App. 158, 89 So. 828; Godwin v. State, 16 Ala. App. 397, 78 So. 313; Mohr's Case, 73 Ala. 503, 49 Am.Rep. 63; Fitzgerald v. State, 18 Ala. App. 115, 90 So. 45.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
The petitioner filed a petition for habeas corpus in all respects complying with chapter 151 of the Code of 1923, and alleging the statutory grounds therefor as required by section 4332 of said Code. The preliminary writ was issued, in response to which respondent produced the body and made return. The solicitor thereupon demurred to the petition, the demurrer was sustained, and the prayer of petition was denied.
The petitioner was being held under a Governor's warrant on requisition from another state, and the court evidently proceeded upon the assumption that the warrant of the Governor was the last word of authority on the subject and could not be denied. This is not the law. In Thacker v. State, 20 Ala. App. 302, 101 So. 636, this court gave to the Governor's extradition warrant its full force, and in that case this court held that the Governor's warrant, being regular on its face, made a prima facie case. This prima facie case is subject to such lawful claims to relief as the petitioner may have, not going to the merits of the case or the jurisdiction of the foreign court issuing the original process. At least one of these claims might be that petitioner is not the identical person named in the warrant. There may be others, but the designation of them is unnecessary here.
The action of the court was a denial of petitioner's right.
The order of the judge of probate is reversed, and the cause is remanded for further proceedings in accordance with the statutes.
Reversed and remanded.